Legal Ethics and Professional Responsibility Commons^™

What Should Law School Student Conduct Codes Do?, Steven K. Berenson

Akron Law Review

Adopting a regulatory function as the primary goal of a law school code seems appropriate. In light of that goal, this article next attempted to present the broad outlines of a code that would serve that goal. Such a code would provide for an initial investigatory phase regarding alleged code violations, with students playing the key role in this and subsequent phases of the process under the code, in order to determine that only meritorious allegations be pursued...Perhaps in light of the possible objectives of a law school code discussed in the beginning of this article, the ultimate objectives advocated …

Why Lawyers Are Different And Why We Are The Same: Creating Structural Incentives In Large Law Firms To Promote Ethical Behavior - In-House Ethics Counsel, Bill Padding, And In-House Ethics Training, Ronald D. Rotunda

Akron Law Review

In many ways, lawyers are different than other people. In other ways, we are, sadly, so much the same. What we often call “legal ethics” or “professional responsibility” is the law governing the practice of law. This law serves to make us different, but our compliance with it struggles against the fact that we are not born different: we struggle with the same demons as other mortals, and like them, we learn to rationalize our failings. And, when we believe that no one is looking, when we are anonymous, we are more likely to rationalize. The structure of the large, …

Exporting American Legal Ethics, James E. Moliterno

Akron Law Review

Over the past decade or so, a massive exportation of U.S. lawyer ethics law, primarily to emerging democracies, has been taking place. The exportation has been managed largely, but not exclusively, by ABA Rule of Law programs, funded extensively by grants from USAID. Excellent work is being done by these programs and nothing in this essay should be read to suggest that these projects lack value. But in one respect, the work of these and other such projects is sometimes tinged with cultural imperialism...The large-scale adoption of U.S. models of lawyer and judge regulation outside the United States is likely …

The New Era - Quo Vadis?, Jack P. Sahl

Akron Law Review

Although the Miller-Becker Institute for Professional Responsibility (the MBI) planned its Inaugural Symposium before the creation of the 20/20 Commission, the Symposium brought together twenty-six national and international experts to examine the consequences of globalization, rapid technological change, and more.

Investigating Jurors On Social Media, Caren Myers Morrison

Pace Law Review

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

Friends Of Justice: Does Social Media Impact The Public Perception Of The Justice System?, Nicola A. Boothe-Perry

Pace Law Review

This article will demonstrate how the unregulated use of social media by participants in the justice system (judges, attorneys and jurors specifically) affects the public perception and subsequently the integrity of our justice system. The article will provide a holistic review of social media use by judges, attorneys and jurors, and demonstrate why their use of social media should be harnessed in a manner to ensure compliance with ethical rules and reduce potential negative effects to the social contract between law and society.

Social media is like a culvert. It catches pictures, novelties, personal profiles, gossip, news, unfiltered opinions, and …

An Interdisciplinary Analysis Of The Use Of Ethical Intuition In Legal Compliance Decisionmaking For Business Entities, Eric C. Chaffee

Maryland Law Review

No abstract provided.

Incentivizing Lawyers To Play Nice: A National Survey Of Civility Standards And Options For Enforcement, Cheryl B. Preston, Hilary Lawrence

University of Michigan Journal of Law Reform

In the last decade, most commentators assume that lawyers’ behavior is now diving to new lows, notwithstanding a flurry of professionalism and civility creeds adopted in the 1980s and 1990s. Proponents of making such creeds enforceable argue that a return to professionalism may improve lawyers’ well-being, restore the public’s confidence in lawyers, and raise the expectations of behavior, not only with respect to civility but also with respect to violations of the Rules of Professional Conduct (hereinafter, as adapted in various jurisdictions, the Rules of Professional Conduct or the Model Rules)

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Nevada Law Journal

No abstract provided.

Mindful Ethics And The Cultivation Of Concentration, Scott L. Rogers, Jan L. Jacobowitz

Nevada Law Journal

No abstract provided.

Behavioral Legal Ethics, Decision Making, And The New Attorney's Unique Professional Perspective, Catherine Gage O'Grady

Nevada Law Journal

No abstract provided.

Preventing Legal Malpractice And Disciplinary Complaints: Ethics Audits As A Risk-Management Tool, Susan Saab Fortney

Faculty Scholarship

This column examines the value of firm lawyers conducting and supporting ethics audits as an integral feature of a comprehensive risk-management program. For decades, legal malpractice experts have urged lawyers to implement systems, policies, and procedures related to the delivery of legal services. Once a firm adopts systems, policies, and procedures, a meaningful risk-management system requires a periodic examination to monitor lawyers’ compliance. Rather than waiting for a professional liability insurer to recommend or require such a systematic examination, proactive firm leaders and lawyers should seriously consider devoting time and resources to periodic ethics audits.

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Faculty Scholarship

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Blind Spot: The Inadequacy Of Neutral Partisanship, Melissa Mortazavi

Faculty Articles

No abstract provided.

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

Scholarly Works

This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …

Redefining Professionalism, Rebecca Roiphe

Articles & Chapters

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

How Improving Decision-Making And Mindfulness Can Improve Legal Ethics And Professionalism, Peter H. Huang

Publications

Lawyers who behave unethically and unprofessionally do so for various reasons, ranging from intention to carelessness. Lawyer misconduct can also result from decision-making flaws. Psychologist Chip Heath and his brother Dan Heath, in their best-selling book, Decisive: How to Make Better Decisions in Life and Work, suggest a process to improve people’s decision-making. They introduce the acronym WRAP as the mnemonic for these decision-making heuristics: (1) Widen your options, (2) Reality-test your assumptions, (3) Attain distance before deciding, and (4) Prepare to be wrong. The WRAP process mitigates these cognitive biases: (1) narrow framing of a decision problem, (2) …

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.

Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession, Laurel S. Terry

Howard Lichtenstein Distinguished Professorship in Legal Ethics Lectures

As a Lichtenstein Distinguished Lecturer, Professor Terry was asked to write an article for the Hofstra Law Review. Her article, cited below, may be downloaded from the link at the top of the page.

Laurel S. Terry, Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken, 43 Hofstra L. Rev. 95 (2014)

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

Scholarly Articles

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

The Cost Of Avoidance: Pluralism, Neutrality, And The Foundations Of Modern Legal Ethics, Melissa Mortazavi

Faculty Articles

No abstract provided.

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

Scholarly Works

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher

St. Mary's Journal on Legal Malpractice & Ethics

Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …

Friends Of Justice: Does Social Media Impact The Public Perception Of The Justice System?, Nicola A. Boothe-Perry

Journal Publications

Lawyers have long been recognized as being necessary in the effective functioning of an ordered society in roles as both officers of the court and, more broadly, as officers of the system of justice. In 2014, the ABA Task Force on the Future of Legal Education report noted that "[s]ociety has a deep interest in the competence of lawyers, in their availability to serve society and clients, in the broad public role they can play, and in their professional values." Values such as those noted in the Model Rules of Professional Conduct (advisor, counselor, and advocate) are instrumental in the …

Lawyers Beware: You Are What You Post - The Case For Integrating Cultural Competence, Legal Ethics, And Social Media, Jan L. Jacobowitz

Articles

No abstract provided.